Same-Sex Marriage: Protecting Religious Liberty

Robin Fretwell Wilson is a professor of law at the Washington and Lee University and co-editor of the book, "Same-Sex Marriage and Religious Liberty: Emerging Conflicts."

Updated February 13, 2012, 10:57 AM

After New York cemented its watershed victory last week in recognizing same-sex marriage, some voices objected to the exemption in the legislation for religious institutions. An editorial in The Times, for example, lamented that the very law giving its citizens marriage equality provided needless protections for religious liberty. In the editors' view, “There was simply no need for these exemptions, since churches are protected” under the federal and state constitutions.

The exemptions shifted the debate from whether to embrace marriage equality to how to balance that good with other goods in society.

That claim disregards the much-needed protections that were added by Governor Cuomo and the Senate leadership in the run-up to a final vote. Those protections insulate religious not-for-profits, like Catholic Charities and the Salvation Army, not only from civil suits for refusing to celebrate marriages that violate their religious tenets, but from punishment at the hands of the government. Those late-hour protections simply extend the same type of protection to other religious charitable organizations that Cuomo’s original bill had already provided benevolent organizations like the Knights of Columbus. Individual employees of these groups receive protection, too.

Together, these core protections sweep far beyond the church sanctuary, providing accommodations that exceed what most scholars believe would be constitutionally demanded. Indeed, the law Cuomo shepherded is exponentially better than the “clergy-only protection” offered in New York’s failed 2009 bill.

Those hard-won protections bring New York’s law into line with other states that have legislatively embraced same-sex marriage. New York, Vermont, Connecticut, New Hampshire and the District of Columbia have all now recognized that merely exempting the clergy is not enough. Given the state’s size and influence, New York’s legislation will surely be a baseline for any state that recognizes same-sex marriage through legislation going forward.

The wrangling over these religious protections is evidence of just how important they are. Without such protections, groups that hew to their religious beliefs about marriage would be at risk of losing government contracts and benefits and would be subject to lawsuits from private citizens. These risks are not speculative. The City of San Francisco yanked $3.5 million in social services contracts from the Salvation Army when it refused, for religious reasons, to provide benefits to its employees' same-sex partners. In New Jersey, two sex-same couples sued a Methodist nonprofit group when it denied their requests to use the group's boardwalk pavilion for their commitment ceremonies.

Far from hollowing out the victory for gay marriage advocates, religious exemptions shifted the debate from whether to embrace marriage equality to how to balance that good with other goods in society. Religious liberty protections constitute a middle path that allow policymakers to recognize two compelling interests in a plural democratic society.

If New York's law stands for anything, it is that legislatures can advance one civil right without simultaneously eroding another.